THE QUEEN v. TAM KWAI YUEN

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JUDGMENT

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Silke, J.A.:

1. On the 27th of March 1984 this Court allowed the appeals of HO Yee-chung, CHAN Tak-kwong and LEUNG Chi-ho against their convictions recorded on the 26th of January 1983, after trial by jury, on two counts in an indictment, the first being that of murder and the second, robbery. There had been charged with them, and each count was a joint count, TAM Kwai-yuen. Retrial was ordered.

2. Ho was the 1st Defendant, Chan the 2nd, Tam the 3rd and Leung the 4th on the original indictment.

3. Convictions for murder had been returned against the 1st and 4th Defendants and manslaughter against the 2nd and 3rd Defendants. All four had been convicted of the robbery.

4. TAM Kwai-yuen had abandoned his application for leave to appeal and was not represented at the original hearing, there being nothing for this Court to consider in respect of him.

5. While many issues were raised at the lengthy hearing of that appeal it turned on one and one only that was the directions given as to corroboration. The reasons for allowing the appeal, the Court having held that there were misdirections, were fully set out in the judgment of the Court by my lord the Vice president and it is unnecessary to repeat them here.

6. We were concerned, as was Mr. Alderdice who then appeared for the Crown, in the light of the conclusions to which we had come as to Tam's position and we suggested to the Crown that, in fairness to him, the matter should be brought to the attention of the Executive with the view to having it brought before the Court under the provisions of section 83P(1)(a) of the Criminal Procedure Ordinance Cap. 221 - but of course in consultation with Tam himself. Tam rejected advice from his own legal advisers, from the Commissioner of Correctional Services and indeed from the Crown, to petition His Excellency so as to initiate a Governor's reference. He continued with this view until the retrial had concluded. In it pleas from all the three Defendants had been accepted to manslaughter. Sentences were passed upon them: for the first and the fourth six years and for the second four years' imprisonment on the 9th of August 1984. On the 9th of September 1985 we were informed that His Excellency the Governor had approved the reference to this Court, Tam having finally presented a Petition. The terms of reference were these:

"The case specified herein above is referred to the Court of Appeal pursuant to the provisions of section 83P(1)(a) of the Criminal Procedure Ordinance, Cap. 221 for the Court to consider the case ad an appeal to the Court of Appeal by prisoner TAM Kwai-yuen, including any grounds of appeal which may be filed by the said prisoner and to decide whether to receive any further evidence as may be considered necessary and thereafter to decide whether or not the conviction of the prisoner do stand, or be varied in any, and if so what, manner."

 

7. Therefore we are mow considering this case as an appeal and we have seen the grounds presented to us on behalf of Tam by Mr. Plowman. It is not contested by the Crown that this appeal should succeed for the reason that the grounds are on all-fours with the grounds which were already held to be sufficient to vitiate the convictions of the other co-accused.

8. The issue before us is whether there should or there should not be a retrial. Mr. Plowman has forcefully drawn our attention to three particular factors. First: the period which Tam has already spent in prison which runs from 1981 and is equivalent to a six years' sentence, allowing for good behaviour remission. Second: the strength of the evidence in relation to Tam. In reference to this we are informed that the accomplice Chu who was involved in the original offence and who gave evidence the original trial refused point blank to give evidence at the retrial of the 1st, 2nd and 4th Defendants. Mr. Plowman emphasizes that the basic evidence in relation to Tam is his cautioned statement and we have been referred to the passages in the judgment of Court in the original appeal concerning Tam. Third: that Tam played a lesser role and that D2, who was in the circumstances in a not dissimilar position, had received a sentence of 4 years' imprisonment on the retrial - the sentence in effect already fully served by Tam.

9. Mr. Harris, for the Crown, puts the proposition to us that, given the nature of this case, given the fact that Tam because of his failure to prosecute his appeal has placed himself in the position in the position in which he finds himself today, he should be in no different a position from the 1st, 2nd or 4th accused.

10. We are aware of that which wad said in KWAN Ping-Bong ⁽¹⁾ in relation to retrials and we have given anxious thought to this matter because of the length of time which the Appellant had already spent in custody. But we think in this case the evidence is not so weak that it would not be sufficient to justify a conviction given that a properly directed jury accepted it. We think that the period already served would certainly be reflected, should any conviction subsequently ensue from a retrial, in the sentence to be passed by the Trial Judge. The disparity between the period he had served and of any sentence which might be imposed upon him is not so great as to militate against a retrial.

11. In those circumstances, the order would be that the conviction on the counts of manslaughter and robbery are quashed and the sentence set aside. The Crown had informed us that it does not wish to proceed in relation to the robbery-that count having been left on the file at the retrial or the other accused. We therefore further order that Tam be retried upon a fresh indictment on a count of manslaughter only. We wish to express our anxiety that this matter should be dealt with at the earliest possible moment and that the retrial be expedited.

12. After hearing counsel bail was granted to the Appellant.

(1) [1979] H.K.L.R. 1